from the the-public?-who-cares dept

We've noticed a disturbing trend among the various negotiations going on around the globe about changing copyright law or policies to make ISPs act as copyright cops. Whether it's "voluntary agreements" or imposed by law, the general public is left out of the conversation. Instead, it appears that there are three parties involved in most of the negotiations: the entertainment industry, the ISPs and the government. The government seems to automatically take the position of the entertainment industry, leaving the ISPs as the sole party looking out for "the consumer" -- even if they have their own interests to look out for, not the public's. That's why the policies that come out of these discussions is almost always heavily in favor of the entertainment industry.

It looks like the same thing is happening down under, where the government, the entertainment industry and the telcos are meeting without any representative for the public benefit being involved... and, on top of that, the government seems to be bending over backwards not to say what's being discussed in those meetings. This is pretty horrific, considering that the stated purpose of copyright law is to benefit the public by means of providing monopolies to the creators. Thus, the key party in these meetings should be representatives of the public interest, rather than the monopoly recipients.

from the big-isn't-automatically-bad dept

With the Google Senate hearings yesterday, we noted that the inquisitors seemed to focus on the fact that Google is big as if that is a problem. Senator Franken specifically made that point: the "bigness" of Google is a concern. And, certainly, it is true that big companies tend to be more able to use their position to make decisions that are harmful to consumers. But that's a correlation, not a causal relationship -- and just because a company is big, doesn't mean it's automatically doing bad things. Mathew Ingram has the most insightful analysis I've seen so far of the hearings, in which he analyzes the points raised, and whether or not there's been any evidence of Google actually harming consumers. What struck me was how Senator Blumenthal specifically asked if Google would make its own product less functional. Why would it want to do that? That seems like the exact opposite of what an antitrust investigation should be about. As Ingram notes:

The hard part comes when Barnett says that Google’s dominance in these areas affects consumers because they will face higher prices and reduced innovation. This is the core of an antitrust case (which the Senate hearing isn’t technically part of, but which is currently underway at the Federal Trade Commission and possibly the Justice Department as well, since both share responsibility for antitrust). It’s not enough that a company like Google has a dominant or even monopolistic market position — as judge Learned Hand has written: “The successful competitor, having been urged to compete, must not be turned on when he wins.”

And it’s not even enough to argue that a company with a monopoly is using that position unfairly. It has to be proven that consumers or the marketplace as a whole are being harmed by that behavior, either through higher prices or reduced choice, or both.

The problem with a company like Google — as opposed to a company like Microsoft, the last major antitrust investigation in the technology sphere — is that users don’t actually pay for the vast majority of its products and services. Microsoft’s behavior arguably affected physical goods like computers and software, which people had to pay for. What does Google’s behavior affect? I’m not paying any more to use Google Maps than I would to use some other service, nor am I paying more to use Yelp because it has somehow been disadvantaged by Google’s attempts to “scrape” its content for local recommendations.

Certainly, "big" companies may become companies that abuse their position and harm consumers, but nowhere has anyone shown any actual evidence of harm. To date, the focus has basically been on the fact that Google is big... and on how some competitors don't like it that they can't keep up. But the evidence of higher prices? Just not there.

from the this-isn't-rocket-science dept

Back in July, when the Fox Network announced plans to block or delay many of its popular shows from going online, we predicted this would increase the number of unauthorized downloads. This just seemed stupid. People want to access it online and they will access it online. Why not offer it to them in an easy and convenient manner that can be monetized. Of course, when others pointed out the same thing, the geniuses at the MPAA threw a hissy fit about how even admitting that Fox's stupid business decision might increase unauthorized file sharing was the equivalent of praising "stealing."

So, um, I wonder how the MPAA's brilliant strategists will respond to the news that, in the first week of Fox's delays alone, unauthorized downloads of some of its most popular shows increased massive amounts, doubling or tripling what they were before. In fact, that article notes that many of the people viewing it through unauthorized means left comments about how they tried to watch via legal channels, but couldn't.

So I'm wondering how the folks at the MPAA might explain this. Are they going to throw another tantrum and blame "reality" for supporting file sharing? Or will someone there finally buy a clue and recognize that not providing consumers what they want is a bad business decision. I guess that would require someone at the MPAA to actually have experience in business -- but they all seem to be lawyers or political flunkies.

from the nice-'retirement' dept

As was expected, former Senator Chris Dodd has now confirmed that he is a blatant liar and willing to sell out his principles for about a million bucks a year. Just months ago, he announced that he would not, under any condition, take a lobbying job. And here it is, just a month or so after he left the Senate and he's confirmed that he's taken the top job at the MPAA, an organization, who just a week ago admitted its number one priority was lobbying the government. Of course, Dodd is also using a loophole to get around the laws that forbid Senators from jumping to lobbying jobs so quickly after leaving the Senate. On top of that, in announcing this, he also talked up the importance of increasing our already draconian copyright laws, with views that appear to contrast to what he said back when he was a Senator and claimed he supported internet freedom. I guess that million dollar plus per year salary eases the conscience.

from the really? dept

This one's a bit bizarre. We were just talking about the ridiculous boondoggle called the Universal Service Fund, which is one of those "taxes" on your phone bill that's supposed to go towards having the big telcos supply service to rural areas. Of course, since there's no oversight, it seems like most of the money just goes into the telcos coffers. There are all sorts of ways to deal with this, but one idea that makes no sense at all has been put forth by the Consumer Federation of America... who thinks that Netflix should be "taxed" to provide money for the USF. Why? Um, that's not clear. Basically CFA seems to think that big internet companies should now pay up just because:

"The Internet is not an infant industry anymore. It can certainly bear the burden of making sure that wires and the communications mediums are there."

So, really, what this "consumer" group is suggesting is that Netflix raise its prices on consumers, to give telcos more money that they just use to pay for operations, rather than actually investing in infrastructure for the disconnected. How does that possibly help "consumers"?

from the too-bad dept

I mentioned on Twitter yesterday that it was really sad how difficult it was to find any candidates I actually wanted to win in the election yesterday. In most cases, the more familiar I was with any candidate, the more I felt they didn't deserve to be elected (and that included both the leading candidates in many elections). There was one exception, however: I hoped that Rick Boucher would win re-election. There is a very, very small number of Congressional Representatives who actually seem to really get technology, telecom and copyright issues, and Boucher is was one of them. Despite easily winning re-election in many past elections (he didn't even have any real competitor last time around), it looks like Boucher has been swept out as part of the anti-incumbent sentiment. Trust me, I understand the desire to get rid of incumbent politicians, but Boucher was one of the rare politicians who actually seemed to get the issues that many of us find important.

This is bad news for copyright and for consumers. Not that he was all that successful in passing the laws that mattered on that subject, but he was one of the few who would ask the key questions, and actually try to fix those broken laws -- such as his repeated attempts to fix the DMCA and support fair use, as well as more recent attempts to stop the massive boondoggle that is the Universal Service Fund. Boucher was so respected on these issues, that even Public Knowledge's Gigi Sohn and ITIF's Richard Bennett agreed that this was bad news. I've known both Richard and Gigi for a while, and I can't recall them ever agreeing on anything. Gigi wrote up a blog post about what a loss this is for consumers and innovation. Hopefully we'll find out that one of the newly elected representatives actually understands some of these issues -- or perhaps some of the "survivors" will step up and recognize the issues. But Boucher's loss is bad news.

from the people-are-realizing... dept

While most people still don't pay much attention to the harm caused by out of control intellectual property law, it does appear that recognition of this issue is growing daily. We often hear the refrain that "intellectual property laws will never change, so why bother pointing out their problems," which is an incredibly defeatist attitude. Slowly but surely, the evidence is mounting, and as we see more cases of situations like Russia's abuse of copyright laws to suppress dissent, people will begin to realize how far gone these laws have become.

Copyright and patent laws "are often misused" for reasons that have "more to do with limiting competition and preventing consumers from making innovative uses of their products" than they do with stopping piracy, global consumer advocacy group Consumers International plans to tell a UN internet meeting today....

Consumers International is asking for an amendment of the UN Guidelines for Consumer Protection [pdf], which was first adopted 25 years ago, the group said in a press release. Jeremy Malcolm, the Consumers International project director for IP and communications, said that IP rights and human rights have "for too long" been framed as having similar status, when misuse of IP interferes with "freedom of expression, education and participation in cultural life."

It's unlikely that this will have much impact initially, but it's hard to deny that more and more people are recognizing the problems of an out of control intellectual property system that has been the result of decades upon decades of regulatory capture.

from the false-dilemma dept

James Gannon, a Canadian IP lawyer who works closely with the recording industry, recently put up a post on Facebook in which he tries to separate the world out into consumers who want freedom and creators who want control. The problem is that this is a totally false dichotomy. These aren't two separate groups. Most people are both creators and consumers at the same time. The lines separating the two are also somewhat porous and meaningless. Yet, by setting up this fake "us vs. them" dichotomy, Gannon can effectively brush aside those who are against things like DRM as simply not appreciating art and to appeal to everyone's innate desire to be creative and artistic to make them feel like being against DRM is somehow dirty. Let's dig in a bit:

People who oppose protection for digital locks tend to see art and culture in the same light as they see mass-produced consumer goods.

Note how Gannon lumps together all of the folks who don't like digital locks and tries to "classify" them. And he does so in a way that makes them sound like Philistines. They look down on art. It's just a "mass-produced consumer good." Except, of course, that's not even close to true. Many of those opposed to laws giving overriding control to digital locks are content creators ourselves, who deeply value creativity and the content creation process. We just realize that digital locks often get in the way of that process. Gannon then goes on to basically repeat his first sentence over and over again in different forms, all with the intent of suggesting that people who don't like digital locks don't get art. They're boring engineers who like to (gasp!) tinker with things.

Artists tend to disagree with this view. Most musicians think their of their albums as more than a collection of grooves on a plastic disc. It's art, and it's an important part of our culture.

Ah, and here is the pure and beautiful artist, living above such petty worldly concerns about technology and how things work.

The problem, of course, is that these two "groups" are works of fiction. The simple fact is that almost everyone today is both a creator and a consumer, often at the same time. In fact, almost everyone I know who is seriously against DRM or mandating digital locks is a well-established content creator. But, at the same time, they're also vast "consumers" of content as well. That's because the best way to be a content creator is to also joyfully consume what others are doing -- to experience that overall culture and (perhaps, sometimes) to gain inspiration, motivation and revelation from those works. Pretending these are two separate groups of people does a disservice to the actual issues at play.

I can't think of anyone I know who is against DRM who looks at art as just some piece of plastic or "a toaster" as Gannon claims. Instead, I tend to see the opposite. I see people of all kinds who find inspiration from that creative work and want to share that inspiration with others, and build a cultural connections around those works. If the people against DRM didn't value the artwork itself, this wouldn't be an issue, because they wouldn't care so much.

The idea for copyright came out of that second line of thinking.

Well, no, actually, it didn't. The idea for copyright came from an attempt to actually grant more power to middlemen to limit certain forms of creativity. Gannon, it appears, is not familiar with the history of copyright. Of course, more modern copyright law was designed to "promote progress" for society as a whole. That still has nothing to do with recognizing the beauty of art over plastic goods and toasters. Copyright was never intended to be a one-sided tool for artists, but it was designed to benefit society as a whole. In fact, early copyright laws focused on improved learning and education, and often left out such wasteful things as pure artwork.

Quite honestly, people in that first group will probably never understand or support the notion of digital locks because they essentially don't see the point of any copyright at all. To them, an artist asking them not to copy their CD is no different than Ford telling them not to put their car in reverse.

No. It is not because we see it as no different from Ford trying to stop us from going in reverse, but because we recognize how it's actually limiting art and creativity, by limiting the cultural relevance and the ability to be inspired and to build off of that inspiration.

The idea of restrictions, any restrictions, on their use of something they bought is an unrivalled affront to their rights as consumers.

No, it's an unrivaled affront to the ability to create and build and share and experience culture which we appreciate and love.

Digital locks were developed as a response to this phenomenon. As more technologies were developed that allowed people to copy works on a massive scale, publishers, large and small, started coming out with digital locks to protect their artists' works and prevent unauthorized uses of their art.

Except, of course, this ignores the truth. Digital locks have never worked and will never work. They did absolutely nothing to "protect the artists' works" or to prevent unauthorized uses of their work. That's because once the lock was picked -- and it always gets picked -- it was available to everyone. What digital locks actually do harm, are the many legitimate users of that content who experience it and wish to do more with it, including building shared cultural experiences around it.

Remember, if there's one thing they hate, it's an artist who tries to control how her art might be used.

Uh, no. No one hates an artist because they try to control their work. They hate it when they are unable to actually do something useful or valuable with a piece of artwork, such as building their own artwork.

The laws you've been hearing about actually don't really concern themselves directly with digital locks themselves. Rather, it's those other technologies, the hacks and the cracks, that the government's bill is trying to outlaw. Just like copyright law makes it illegal to copy or modify a creative work, the bill would make it illegal to hack the digital locks that an artist may use to protect these rights.

If that were really the case, then the law would allow for exemptions for cases of fair use/fair dealing or when the circumvention occurs for totally non-infringing reason (such as archiving, transformative uses, security purposes, etc.).

It all comes back to the art-as-a-toaster point of view: laws that prevent people from doing whatever they want with creative works they purchased are fundamentally wrong, no exception.

Well, yes, laws that prevent people from doing things like that are fundamentally wrong. But it's not because of any "art-as-a-toaster" viewpoint. It's the opposite. It's because content creators know that they are both creators and consumers, and when part of that overall process is blocked, it harms the creativity side quite a bit.

So, what kind of consumer or creative works do you consider yourselves to be? Should artists be able to retain some control on how their works are copied or modified, even once they're sold?

And this is the crux of the article. He sets up this "beautiful pure artist vs. philistine tinkerer consumer" myth to make people identify with art, because, really, who doesn't love art? But, that very point is the reason why Gannon is so very, very wrong. Presenting those who are opposed to digital locks as being unappreciative of art has it backwards. If they didn't appreciate and value the art this wouldn't be an issue. They wouldn't care, because they wouldn't value it enough to care. They'd be off doing something else.

It's a shame that the recording industry and its lawyers want to turn this into an us vs. them situation. It's not. Plenty of people want to create a situation where there are wider opportunities for everyone acting as both creators and consumers, to really allow creativity to flourish. But you don't do that by locking up creativity and pretending that many of those creators don't appreciate art.

from the but-is-it-true? dept

We've seen plenty of studies like this one in the past, but here's yet another in a long list (this one from Australia) suggesting that people who are file sharing unauthorized files are really frustrated consumers, who would pay if there was an actual reason to. That is, it suggests the reason they go to file sharing sites is because they're easier and more convenient, not just because it's free. While I'm sure that's true of some people, I'm not convinced the numbers in this report are anywhere near accurate. This was done as a survey, and surveys are notoriously inaccurate when it comes to having people tell you what they would do, compared to what they actually would do. Frankly, while studies like this do point out that file sharers are often willing to buy -- if given the reason -- the setup of the survey actually gives the industry a false milestone to work towards. It gets them back to thinking that there really is a market for digital goods, when the economics suggest they should be looking for scarcities, not trying to price infinite goods.

"Movie industries obviously want to make their content available online, but they can't compete currently with a free alternative that's perpetrated through theft. Once there is a level playing field, I think you'll begin to see a lot more flexible, innovative business models."

Talk about getting it backwards. The reason they have to compete is because file sharing is there. And, of course they can and do compete with free alternatives all the time, and have for ages. Saying you can't compete with free is a lie. Providers compete on things other than price all the time. In fact, saying you can't compete with free is a direct misunderstanding of what the survey appears to say: it's saying that consumers are more than will to pay for greater value, but the industry refuses to provide it. Saying you won't compete until the market changes in your favor is basically signing your own death warrant.

from the indeed dept

This is more or less stating the obvious to most folks around here, but UK consumer rights advocates, Consumer Focus, has put out a report pointing out that copyright law is obsolete and confusing to most consumers, leading many of them to infringe on copyrights frequently without even realizing it. This, the group notes, is a problem that should lead the government to fix copyright law by adapting it to the times. Of course, the UK seems to be going in the opposite direction these days with the Digital Economy Bill.... Still, it's nice to see more consumer groups realizing how outdated copyright law is these days.